March 3, 2014

Contract Basics: Noncompete

We are almost at the end of this Publishing Contract Basics series, which means it's time to get quite serious. The Noncompete Clause is intense legalese, and it can destroy your future if you don't pay attention. While it's a bummer to be paid less than you deserve, and it's frustrating not to have a say in your cover, and it's impermissible (in my humble opinion) not to have a say on editorial changes made to your work, it is the noncompete clause which can most easily kill a writer's career.

The noncompete clause can also be called "Competing Works," but it boils down to the same thing: the publisher doesn't want you putting out any work that could detract from the sales of whichever book it is they're buying. Now, in some ways, this makes little sense, as everyone seems to agree that having multiple books out is one of the most successful marketing strategies. On the other hand, the publisher wants to make sure that any marketing efforts on their end will translate into money they are making, not a simultaneously published work of yours, whether self-published or from another publisher.

When it comes down to it, the noncompete says that you, as the author, will not publish or allow to be published a competing work within a certain timeframe (e.g. 6 months) of the publication date of the work being negotiated in that contract. Unfortunately for writers, publishers' very smart lawyers will try to define a "competing" work as "any book-length work." And, as we know from discussing publishing clauses, publication can frequently be delayed, beyond the control of the author.

So, let's say you signed a contract in January of 2014 for a book to be published in November 2014, and let's add about 6 months of editorial and publication delay. With such a broadly stated noncompete, you as the author wouldn't be allowed to publish anything else for 6 months after publication, which would bring us all the way to December 2015—almost two years from signing the contract.

A publisher may try to convince you that this is fine, particularly because these clauses will have standard language saying "without publisher's permission"—so if anything comes up, they'll just give you permission, right? Well, that would be nice, but legalese in contracts is always negotiated for the worst-case scenario, and that worst-case scenario is that the publisher continually draws out the publication date and does notgive you special permission to publish something else. And there you go—your entire career is seriously hindered, because of this one clause and a crummy publisher relationship.

So, understandably, agents will negotiate this clause—as should you! Here's what you should look for:

Define the work. I mentioned this a bit when discussing the Option Clause, but it's even more important here. Instead of "any book-length work," you should specify that it be a novel (or novella if that's what you sold), in a specific genre & sub-genre, and a specific age category.

So, for instance, you agree not to publish/authorize the publication of any other novel-length, young adult, paranormal romance.

Just by having the word "novel" instead of "book-length work" you're already freeing yourself to publish non-fiction, including memoirs. Even if you have no interest at the time of signing the contract, it's all about keeping your options open. What if you and a friend decide you want to publish a cook book? Well, as a book, that counts as "book-length work," so with the original phrasing, it wouldn't be allowed. It is not, however, a novel, so that one little change (without even mentioning the genre or age category) would already free you to branch out. Powerful, right?

Regardless of whether you're writing under a pseudonym, you should add the phrase: "written as _____." If you are writing under a pseudonym, that gives you the freedom to publish under your own name, or another pseudonym, and if you're writing as yourself, it allows you the opportunity to write and publish under a pseudonym.

Tie the time limit to a specific date.

Hopefully, you've already given the publisher a time limit to publish the book after acceptance in the publication clauses, however that final publication date could still fluctuate by twelve months or more, making it nearly impossible to schedule the publication of another work. So, you should tie that cushion of time during which you're not allow to publish to a more definitive date—for instance, the expected publication date if it's stated in your contract.

If it isn't stated elsewhere, consider having it stated here.

This way, you'll know precisely when you cannot schedule other competing works to be published, making it much easier to sell your work.

Limit that cushion as much as possible. If you cannot have "competing works" published within 6 months of publication for each of your books, and you only write in one genre, you will only be able to publish a maximum of 2 books a year, if they're coming from different publishers.

Now, 2 books a year is quite respectable, as they take time to write, and edit, etc., but in today's world, that rarely translates to a living wage, particularly for beginning authors. And if you're prolific enough to get more than 2 books a year ready for publication, you should ensure you'll be free to publish them.

If you aren't selling all rights to your publisher, the noncompete (watch out—the language itself may be in another clause) may include limits on what you can do with the rights you aren't granting them. For example, if you're selling only digital rights, there could be language saying that you don't have the right to sell print rights to anyone else—even if it's a digital-only press. So what happens if your digital sales go well and someone else wants to pay you to print your book? You can't let them.

Any such language should really be removed. If this publisher isn't interested in certain rights, or isn't willing to pay you a fair amount for them, you should be able to sell them at will to someone else.

The exception to all of this, of course, is if you have a wonderful relationship with your publisher and want all your books to be published by them—and they want to publish all of your books in every format. Then, the noncompete isn't a concern, since books published by the same company wouldn't be considered in competition. Remember, however, that you need to negotiate so that all is well for your career in the worst-case scenario, as in the best-case scenario we all hope for, neither you nor the publisher would need to reference the contract again after signing.